A New (and Better) Interpretation of Holmes's Prediction Theory of Law

Abstract

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: a meteorologist predicts tomorrow's weather the way an attorney predicts a future decision by a judge. But Holmes said that what a judge decides in the future is inconsequential; a person (such as a bad man) must plan his affairs on the basis of present law. Present law is nothing other than the prediction itself. It is like quantum theory: what we see is not solid matter but rather the probability of solid matter. The law that influences our behavior is itself only a probability. In consequence, the legal realists' focus on the judge is misplaced; the focus should be on the attorney.